Father's Child Custody Rights When the Child's Mother Is Mentally Ill

By Christine Funk, J.D.

Father's Child Custody Rights When the Child's Mother Is Mentally Ill

By Christine Funk, J.D.

Child custody is often one of the most contentious areas of a family law practice. Even when both parents want what is best for the child, there can be disagreements about how to best meet the child's needs, and who can provide care. Mental illness, of course, can complicate things even further. When a child's mother is mentally ill, it is natural to explore a father's child custody rights with the mental illness in mind.

Father and daughter lying on a carpet playing with toys

Best Interest of the Child

In every custody case, the court makes a decision based on the best interests of the child. As such, in every case where the child's mother is mentally ill, the court must examine her condition carefully. Having the love and care of both parents is generally considered in the child's best interests. If the mother's mental illness is currently treated and monitored, the court may continue granting some level of shared custody.

If, on the other hand, the mother's mental illness makes her a danger to herself or others, the court will consider this. In a situation where custody was previously established, a change in the mother's mental health which endangers the children is likely a “change in circumstances" that would permit a motion for a change in child custody.

Similarly, if a mother's mental illness, through medication, treatment, or a combination of the two, improves, this may also provide a basis to request a change in child custody.

Understanding Custody Under the Law

In family law, custody is an umbrella term that actually covers two different types of custody: legal custody and physical custody.

Legal Custody

When a parent has sole legal custody, they are given the rights to make all legal decisions relating to the child or children. This can include deciding where the child goes to school, what religious instruction they receive, the sports they participate in, and more. While the parent with legal custody may consult with the other parent, they are not obligated to do so. In many cases, courts award joint legal custody. This means both parents are permitted to make legal decisions for the child.

Physical Custody

Physical custody refers to which parent has actual custody of the child after divorce. It refers to where the child lives the majority of the time. Often, parents share physical custody of the child. This is sometimes referred to as “time sharing" or “parenting time." Even in cases where one person is granted sole physical custody, except in the rarest of circumstances, the other parent is granted some visitation or parenting time.

Court Determinations of Custody

When determining legal and physical custody of the children, courts consider a host of factors. While each state has their own list of factors, every state considers the abilities of both parents to provide a safe and loving home for the child or children. Whether a mother's diagnosed mental illness impacts her ability to parent her children is a matter for the court to decide. Because mental illness can change over time, this may very well be an ongoing consideration for the court.

This portion of the site is for informational purposes only. The content is not legal advice. The statements and opinions are the expression of author, not LegalZoom, and have not been evaluated by LegalZoom for accuracy, completeness, or changes in the law.

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